May I have A Final Restraining Order Lifted By A Judge In New Jersey?

November 10, 2014
By
Edward R. Weinstein

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Yes. The attorneys at our law firm located in East Brunswick, New Jersey,
have handled many applications to the Family Part of the Superior Court
of New Jersey to have a
Final Restraining Order vacated on behalf of our client. All told, our lawyers need to prove that
the defendant no longer fears our client. The case below illustrates how
a New Jersey Family Court handles these types of motions.

In
J.R. v. Y.L., the parties were involved in a romantic relationship and lived together
for four years. The parties had one child together during their relationship.
J.R. moved out in February 2012, and the parties shared joint legal and
residential custody of their daughter, meaning the parties’ daughter
lived with both parents and that the parties made important decisions
regarding their daughter together. The parties followed a parenting time
schedule that included custody exchanges on a weekly basis at the Monmouth
County Courthouse.

On November 9, 2012, J.R. obtained a final restraining order against Y.L.
J.R. claimed that incidents of domestic violence occurred while the parties
lived together and after J.R. moved out. J.R. testified that Y.L. stalked
and assaulted him on two separate occasions, one of which occurred in
the police station during a custody exchange of the parties’ daughter.
The final restraining order hearing was rescheduled twice at Y.L.’s
request, but when Y.L. did not appear at the hearing, a final restraining
order was entered against her. Y.L. then filed two motions for reconsideration
over the next two years. The Superior Court of New Jersey Family Part
denied both of Y.L.’s motions for reconsideration because Y.L. gave
contradictory testimony during the motions and claimed that J.R. committed
acts of domestic violence against her. After Y.L.’s motions for
reconsideration were denied, she filed four motions with four different
judges to remove the final restraining order. The final restraining order
was removed on December 19, 2014. J.R.’s first appeal followed shortly after.

J.R. claimed that Y.L. showed up to J.R.’s house unannounced on two
occasions in November and December 2015 after the final restraining order
was removed. Initially, J.R. said Y.L. had no reason to show up to his
house, but he later stated that Y.L. was dropping off their daughter on
an unscheduled day. J.R. stated that he felt uncomfortable having Y.L.
showing up to his home unannounced, even though there was no contact between
the parties. The only contact the parties have had since December 2015
has been through email and only in regard to the parties’ daughter.
J.R. also stated that Y.L. suffers from bipolar disorder and often goes
off her medication. J.R. feared that Y.L. posed a danger to him if the
custody litigation did not go in Y.L.’s favor. Y.L. stated that
J.R. is not afraid of her and that there was no need for a restraining
order. Y.L. explained that she dropped off the parties’ daughter
unannounced because Y.L. was caring for her sick mother and that sometimes
J.R.’s emails bounced back. Furthermore, Y.L. stated that the parties
had been using locations other than the courthouse to exchange custody
of their daughter since December 2014 after the final restraining order
was removed. Y.L. stated that J.R. was mentally, emotionally, and physically
abusive toward her and her children. Y.L. has since gotten married, had
a baby, and undergone counseling for domestic violence. Y.L. believed
J.R.’s issues were not about domestic violence, but really about custody.

In removing the final restraining order, the trial judge applied the
Carfagno factors and noted that the parties were communicating with no issues.
Additionally, the judge noted that the issues raised seemed to demonstrate
an arising custody battle. The judge focused on the good faith of the
victim as well as the victim’s alleged fear, but ultimately decided
the final restraining order was not necessary to protect J.R. from future
harm. J.R. appealed the trial court’s decision.

On appeal, J.R. argued that the trial court judge did not make any factual
findings regarding the decision not to reinstate the final restraining
order. Furthermore, J.R. argued that the judge failed to determine the
credibility of the parties’ testimony. The New Jersey Appellate
Division stated that it does not reverse a trial court’s decision
when the decision was supported by adequate and substantial evidence.
Additionally, the Appellate Division gives great deference to the trial
court when dealing with family matters because of the trial court’s
expertise in the area. The Appellate Division stated that giving deference
is especially important when the credibility of testimony is involved.
The Appellate Division also noted that a final restraining order may be
removed upon a showing of good cause, which is based on a substantial
change in circumstances since the final restraining order was entered.
The court indicated that the primary focus when determining to remove
a final restraining order is the safety of the victim under the totality
of the circumstances.

The Appellate Division stated that there are eleven factors under
Carfagno that the trial court should consider when evaluating good cause. The
Carfagno factors include: whether the victim agreed to remove the order; whether
the victim legitimately fears the abuser; the parties’ relationship
currently; if the abuser violated the restraining order; whether the abuser
has a substance abuse problem; whether the abuser has committed other
violent acts; whether the abuser sought counseling; the health and age
of the abuser; the good faith of the victim in fighting to keep the restraining
order; whether the abuser has other restraining orders against them; and
any other relevant facts the court finds relevant. The Appellate Division
also stated that the trial court must look to the victim’s objective,
not subjective, fear of the abuser. In order to determine objective fear,
the court must determine the fear of a reasonable victim in a similar
situation. Additionally, the trial court must look at the history of domestic
violence under the totality of the circumstances.

The Appellate Division agreed with the trial court and affirmed its decision.
The Appellate Division reasoned that Y.L. showed a substantial change
in circumstances that warranted dismissing the final restraining order.
Y.L. demonstrated that she had sought counseling and moved on from the
relationship with J.R. Also, the Appellate Division reasoned that J.R.’s
fear was not objectively reasonable, since the court found J.R. was just
trying to use the restraining order against Y.L. in the parties’
custody litigation. Furthermore, the Appellate Division found that the
trial court’s decision was supported by substantial and adequate evidence.

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